City of Spokane v. McDonough

485 P.2d 449, 79 Wash. 2d 351, 1971 Wash. LEXIS 604

• Court: Washington Supreme Court
• Decided: May 27, 1971
• Docket: 40913
• Status: Published

Opinions

Rosellini, J.

The defendant was charged with disorderly conduct as defined in Spokane City Ordinance No. C1377, § 3. His conviction in the Spokane Municipal Court was confirmed on appeal to the superior court in a trial to the court without 'a jury. The defendant now appeals the superior court judgment and sentence. He challenges the sufficiency of the evidence, claims unconstitutional vagueness in the ordinance, and asserts abridgment of his constitutional rights to freedom of speech.

The case comes here with 'an unique feature: a sound film, taken at the rally and put into evidence at trial, shows most of the transaction upon which the conviction rested. The defendant’s statement of the case in his brief adopts the film as a complete account of the operative facts; respondent city, in its counterstatement of the facts, accepts “in general Appellant’s Statement of the Case” and thus adopts the film, too, as a statement of the case. Consequently, we are in the same position as was the trial court in viewing the evidence.

Several thousand people had gathered at the Parkade Plaza in downtown Spokane at a political rally to hear Mr. Spiro Agnew, the Republican vice-presidential candidate. The defendant, a senior at Gonzaga University, stood among a group of spectators near the railing on what could be described as a balcony or second-story walkway located above the plaza area. Mr. Agnew was well into his speech when defendant shouted “Warmonger.” Looking up, Mr. Agnew inquired, “Who said that?” and the defendant, moving to the balcony railing and looking down at the speaker, called, “I said it,” giving the current peace sign by making a “V” with his fingers, and adding, “What the hell do you think this means?” By then, a police officer, stationed on the balcony, had reached defendant’s side and placed him under arrest.

Spokane City Ordinance No. C1377, § 3, under which the complaint was filed, reads:

Every person who shall on any street, sidewalk, alley, or public place, or in or upon any private house, building or premises, act in a noisy, riotous or disorderly manner, or use any profane, obscene or abusive language, or do any indecent or immoral act tending to debauch the public morals, or do any act tending to disturb the public peace, shall be guilty of a misdemeanor.

The complaint charged that defendant acted in a noisy, riotous and disorderly manner, used abusive language and committed acts tending to disturb the public peace.

We need not consider the defendant’s contentions that the ordinance is void for vagueness or that it is violative of the First Amendment right of free speech, inasmuch as we are convinced that the defendant’s words did not constitute disorderly conduct under the circumstances.

Giving the ordinance a reasonable interpretation, we do not conceive that it was intended to prohibit conduct which is customarily considered acceptable at events of the type at which it occurs, assuming the event itself is lawful.

The evidence, including the film viewed by this court, showed that the political rally was a noisy and partisan event. There were banners and slogans and shouting.

On such an occasion, where an open-air crowd is tacitly invited to demonstrate its approval of the speaker and his party through applause, cheers and friendly expletives, it is to be expected that those of opposing views in the audience are likely to convey vociferously their disapproval in an orderly but vocal way. Shouting the word “Warmonger” but once — without more to indicate a further purpose or intention of breaking up the meeting, or to deprive the speaker of his audience, or to interfere with the rights of others to hear, or the speaker to speak — did not amount to a disturbance of the peace, in fact or in law.

The judgment is reversed and the prosecution dismissed.

Hamilton, C.J., Stafford, J., and Hill and Donworth, JJ. Pro Tern., concur.